Respondeat Superior: When Employers Are Liable for Employees

Respondeat superior (Latin for "let the master answer") is the rule that an employer is liable for torts committed by its employees while acting within the scope of their employment. It is the most common form of vicarious liability: liability imposed on one person for another's wrong, without any fault of their own. The employer does not need to have been careless in hiring or supervising. The employee remains personally liable too.

It is why accident victims usually sue the company, not just the driver. This guide covers the test, the hard cases (detours, after-hours conduct, assaults), independent contractors, and how England and India approach the same question.

The rule

The Restatement (Third) of Agency states the scope test in § 7.07. As the Utah Supreme Court summarized it in M.J. v. Wisan (2016), an employee acts within the scope of employment "when performing work assigned by the employer or engaging in a course of conduct subject to the employer's control," but an act is not within it "when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer."

Plaintiffs must therefore show two things:

1. An employment relationship. The wrongdoer was an employee (not an independent contractor), meaning the employer had the right to control how the work was done.
2. Scope of employment. The tort happened while the employee was doing the job, or doing something closely connected with it.

Why employers pay without fault

Courts give several reasons. The employer profits from the work and can spread the cost of accidents through prices and insurance. The rule also gives employers an incentive to hire, train and supervise carefully. Judge Friendly doubted these policy explanations: in Ira S. Bushey & Sons, Inc. v. United States (2d Cir. 1968), he said respondeat superior rests less on policy than on "a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities."

Scope of employment: the hard cases

Frolic and detour

A detour is a minor deviation from the job, such as a delivery driver stopping for coffee on the route. It usually stays within scope. A frolic is a substantial departure for the employee's own purposes, such as the same driver taking the van to a beach two hours away. It falls outside scope until the employee returns to the employer's business. The line is usually a question of fact for the jury.

Commuting

Under the "coming and going" rule, ordinary commuting to and from work is usually outside scope. Common exceptions include special errands for the employer and travel between job sites. Some states, notably California, also apply an exception when the employer requires the employee to bring a personal vehicle to work.

Conduct that breaks the employer's rules

An employer cannot escape liability just because it told employees not to do the thing they did. A trucking company that forbids speeding is still liable when its driver speeds on a delivery, because speeding is a wrongful way of doing the assigned work.

The foreseeability approach: the drunken sailor

In Bushey, a Coast Guard seaman returning from shore leave late at night, drunk, turned wheels on the wall of a floating drydock, opening valves that flooded its tanks. The ship slid off its blocks and parts of the drydock sank. Turning the wheels served no purpose of his employer, although his return to the ship did. The court still held the United States liable, rejecting a strict "motive" test. The risk that crew members going to and from their ship would cause damage was characteristic of the enterprise. Most courts, and the Restatement, still ask whether the employee meant to serve the employer at least in part; Bushey is the leading example of a minority alternative.

Intentional torts

Assaults and other intentional wrongs are the hardest category. Employers are often liable when the violence grows out of the work, such as a bouncer using excessive force, or in some states (California, for one) a driver attacking another motorist after a traffic dispute on the job. They are often not liable when the employee acts out of purely personal motives that the job merely made possible.

In Lisa M. v. Henry Mayo Newhall Memorial Hospital (Cal. 1995), an ultrasound technician, after completing the ordered scans, sexually molested a patient under the pretence of a further examination. The California Supreme Court held the hospital was not vicariously liable. "That the employment brought tortfeasor and victim together in time and place is not enough"; the tort must be "engendered by" the employment. The technician "simply took advantage of solitude with a naive patient to commit an assault for reasons unrelated to his work." The court remanded the patient's separate negligence claim to the Court of Appeal to decide.

States differ here. In M.J. v. Wisan (2016), the Utah Supreme Court refused to hold that sexual misconduct can never be within the scope of employment. On unusual facts, a religious leader acting as a trustee who directed a follower's sexual abuse of a minor, it held a jury could find the conduct was within the scope of his role.

Independent contractors

As a general rule, a business is not vicariously liable for the torts of an independent contractor, such as a plumber hired for one job, because it does not control how the work is done. The label in the contract does not decide this; courts look at the actual right to control. Exceptions include:

• Inherently dangerous activities, such as blasting;
• Nondelegable duties, such as a landlord's duty to keep common areas safe in some states; and
• Apparent agency, where the business leads the public to believe the contractor is its employee, as with some hospital emergency rooms.

Vicarious liability vs. direct liability

Respondeat superior is liability without fault. An employer can also be directly liable for its own negligence in hiring, training, retaining or supervising an employee. That claim can succeed even where the employee acted outside the scope of employment, which is why plaintiffs often plead both. In Lisa M., the patient also alleged the hospital was negligent in not having a chaperone present.

	Respondeat superior	Negligent hiring or supervision
Employer's fault needed?	No	Yes
Key question	Was the tort within the scope of employment?	Did the employer know or should it have known of the risk?
Works for acts outside scope?	No	Yes

Worked examples

Example 1: the delivery detour

Ravi, a delivery driver, stops at a drive-through on his route and rear-ends another car in the line. A short stop for food during the workday is a detour, so his employer is likely liable. If he had taken the van to visit friends in another town and crashed there, the employer would likely argue frolic.

Example 2: the angry repairman

A cable installer argues with a customer over where to drill a hole, loses his temper and shoves her. The dispute arose from the work, so many courts would treat the battery as within scope. If instead he returned that night to burgle the house, the employer would not be vicariously liable, though it might face a negligent hiring claim if it knew or should have known of a relevant criminal record.

Example 3: the hired painter

A homeowner hires a painting company, which sends its own crew with its own equipment. A painter drops a can onto a passer-by. The painter is the company's employee, not the homeowner's, so the company, not the homeowner, is vicariously liable.

How it shows up on the exam

• Employee or contractor? Analyze the right to control first.
• Scope: kind of work, time and place, and purpose. Distinguish frolic from detour.
• Intentional torts: under the majority (Restatement) test, ask whether the employee acted at least partly to serve the employer. Some states, such as California in Lisa M., instead ask whether the tort was engendered by the work; Bushey uses a foreseeability approach.
• Forbidden acts done in the course of the work usually remain within scope.
• Plead direct liability too: negligent hiring, training or supervision.
• Remember the employee is personally liable as well.

If this happened to you

• Identify the employer. If you were hurt by someone on the job, such as a delivery driver, a store employee or a contractor's worker, the employer may be liable and is usually better insured.
• Record work details. Company names on vehicles or uniforms, the time of day, and what the person was doing all bear on scope of employment.
• Government employees are different. Claims against public employers can involve special notice requirements, short deadlines and immunities.
• Deadlines apply. Every state has a statute of limitations for injury claims.
• This is general information, not legal advice. A lawyer licensed in your state can tell you who may be liable. Your state or local bar association can usually refer you to one.

How England and India treat it

England asks whether the wrongful conduct was so closely connected with what the employee was authorised to do that it is fair and just to hold the employer liable. The House of Lords adopted this "close connection" test in Lister v. Hesley Hall Ltd [2001] UKHL 22, holding the owners of a boarding school liable for a warden's abuse of pupils in his care. The UK Supreme Court confirmed in Barclays Bank plc v. Various Claimants [2020] UKSC 13 that there is no vicarious liability for a genuinely independent contractor.

India follows the common-law rule and applies it to the State, except for acts done in exercise of sovereign powers. In State of Rajasthan v. Vidhyawati (1962), the Supreme Court held the State liable, like any other employer, when a government jeep driver bringing the vehicle back from repairs fatally injured a pedestrian, because the act was unconnected with sovereign functions. For the wider tort framework, see our notes on the essential elements of tort.

Related reading

• Negligence per se
• Assault vs. battery
• Comparative vs. contributory negligence

Sources

• Restatement (Third) of Agency § 7.07, as quoted in M.J. v. Wisan, 2016 UT 13, 371 P.3d 21
• Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968)
• Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal. 4th 291, 907 P.2d 358 (1995)
• Lister v. Hesley Hall Ltd [2001] UKHL 22
• Barclays Bank plc v. Various Claimants [2020] UKSC 13
• State of Rajasthan v. Vidhyawati, AIR 1962 SC 933